SAUDI MAHTO Vs. SUKHLAL MAHTO

JUDGEMENT

(1.) This is a reference made by the Sessions Judge of Gaya recommending that the order of attachment; of certain holdings under Section 146, Criminal Procedure Code, passed by the Sub-Divisional Magistrate of Newadah be set aside. The dispute which led to a proceeding under Section 145, Criminal Procedure Code, related to the holding which once belonged to one Teka Mahton who died, it is said, leaving two widows. One of them left the village and the second widow, Musammat Pato is said to have taken possession of the entire holding. The case of the first party was that about 10 years before the disputes arose Musammat Pato surrendered her widow's interest in favour of them and to the other agnate Saudagar Mahton who was also a party to the proceeding.

(2.) The case of the second party, namely Bandhoo Mahton and Saudi Mahton was that about nine days before the commencement of the dispute Musammat Pato transferred the holding to them and put them in possession. This was denied by the first party who asserted that Musammat Pato was dead before the date of execution of the alleged sale deed. Saudagar Mahton in whose favour half of the holding was said to have been surrendered by Musammat Pato according to the version of the first party denied any interest in the land. So the dispute was between the first party and Bandhoo and Saudi. While the former claimed half of the holding by virtue of the surrender made by Musammat Pato, the latter claimed the entire holding on the basis of the transfer made by her. The learned Magistrate found that Pato was living. In fact, a woman claiming to be Pato was examined as a witness in this case and her evidence is the subject matter of comment both by the learned Magistrate and by the learned Sessions Judge. She did not claim possession in herself, but in her evidence at one place supported the first party and at another the second party. The learned Sub-Divisional Magistrate, while unable to find possession with the first party was also unable to find possession with the second, party on the ground that the interval between the execution of the sale deed by Musammat Pato and the commencement of the dispute was so short that the, second party could not have obtained possession of the holding. Thus, being unable to come to any definite finding about the fact of possession he attached the subject-matter of dispute.

(3.) The learned Sessions Judge has criticised the findings of the learned Magistrate on evidence and seems to be of the view that the possession of the second party, was proved. I see no reason to interfere in this, case. It is seldom that this Court interferes on facts with an order passed under Secs.145 and 146. There is no question of law involved in this case and even on facts I cannot hold that the reasons given by the learned Magistrate are entirely unsound and untenable. The learned Magistrate has given good reasons for holding that the second party could not have been able to obtain possession after the sale when there was admittedly an obstruction on behalf of the first party apart from the question of the surrender by the widow to the agnate of her husband. The matter is one which must be decided by a Civil Court. The reference is discharged.